ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR. versus M/S. BEST & CO.

Citation: [1966] SUPP. 1 S.C.R. 46 · Decided: 25-03-1966 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Judgment (excerpt)

4R 
ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR. 
v. 
MIS. BEST & CO. 
March 25, 1966 
fK. SUBBA RAO, V. RAMASWAMI AND J. M. SHELAT, JJ.] 
Limitation Act (9 of 1908), s. 12(2) and (3)-Application for leave 
!<' appeal-Rules of High Court permitting filing without copies 
of 
1udgment or order-Time taken for obtaining copies-If could be ex-
cluded in computing limitation. 
The respondent's petition under Art. 226 challenging an orJer of 
the appellants (customs authorities) was ordered by the High Court. 
The appellants immediately applied for cert:fied copies of the judg· 
ment and order. Th<·y filed an application for leave, to appeal to 
this Court against the order of the High Court, along with a cer-
tified copy of the judgment which alone was furnished to them by 
then; but the application was beyond the period of limitation even 
after excluding the time taken for obtaining the certified copy of the 
judgment. The certified copy of the order was furnished to the ap-
pellants thereafter, but it was not annexed to the application for leave 
to appeal. The High Court dismissed the application on the ground 
!hat it was barred by time. 
In appeal to this Court. the appellants contended that they were 
entitled under s. 12(2) of the Limitation Act to exclude the time 
taken in obtaining the certified copy of the order, while the respon-
dent sought to support t.he dismissal on the grounds that: (!) the ap-
plication for leave to appeal was competent without annexing either 
the certified copy of the judgment or order under the Rules of the 
High Court, and therefore, it cannot be said that the time taken for 
obtaining the copy of the judgment or order was requisite, and hence. 
could not be excluded under s. 12(2) or (3), and (ii) the prescribed 
F'l'.>rm for an application for leave prohibited the annexing of a copy 
of the judgment or order. 
HELD: (i) Under s. 12(2) and (3) of the Limitation Act, the time 
for obtaining the crrtifif'd copif's of the judg~ent nnd the decree or 
the order must bo excluded while computing the peri<ld of limitation. 
The Legislature allO\\.t'd lhe exclusion to enable a party who intends 
to file an appeal to examine the decree or the judgment before he 
launches a further proceeding. The provision does not depend upon 
whether the Civil Procedure Code or Rules of a Court permit a peti-
tioner to file an application for leave to appeal with or without " 
copy of the jud~ment or order or decree, and where the Rules so 
permit. whether he has annexed such a copy to his application or 
not. f52 H-53 Bl 
Surty v. Chettyar, L.R. 55 I.A. 161, applied. Gangaram v. Behari-
lal A.LR. 1952 Bhopal 39 and Abdul Aziz v. Jai Ram. A.I.R. 1951 H.P. 
fn, overruled. 
(ii) The rule ond the Form prescribed do not lay down any man-
datory direction that a copy either of the order or of the judgment 
shall not be annexed. f51 B-Cl 
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COLLECTOR OF CUSTOMS V. BEST & CO. (Shcfr•t, J.) 
47 
CIVIL APPELLATE JURISDICTION: Civil 
Appeal No. 275 of 
1966. 
Appeal by special leave from the order dated August 17, 1965 
of the Calcutta High Court in an application for leave to appeal 
to this court in Appeal No. 254 bf 1963. 
WITH 
Civil Miscellaneous Petition No. 2195 of 1965 (Petition for 
Condonation of delay). 
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant. 
A. K. Sen and D. N. Mukherjee, for the respondent. 
The Judgment of the Court was delivered by 
Shelat, J. On March 31, 1959 the respondents obtained a 
licence to import certain machinery from West Germany. 
The 
import licence contained particulars of the machinery to be im-
ported and inter alia stated that its value would be "C.I.F. value 
of Rs. 45,000". One of the conditions upon which the licence 
was issued was that: 
"the above application is accepted and import 
licence is granted having quantity and value as the limit-
ing factor and is not valid for clearance if the actual 
value of any item exceeds the C.I.F. value indicated in 
the licence by more than five per cent." 
The machinery arrived at the port of Calcutta sometime in 
July 1960 and was allowed to be cleared on the bill of entry sub-
mitted on behalf of the respondents. The bill of entry showed 
the C.I.F. value of the machinery at Rs. 44,843.61 nP. The cus-
'F 
toms authorities thereafter assessed the duty payable on the said 
machinery and the duty so assessed was paid by the respondents. 
On May 6, 1961, in conseq

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