MANJI DANA CORAM Vs. COMMISSIONER OF INCOMETAX NAGPUR
HIGH COURT OF KERALA
MANJI DANA CORAM
COMMISSIONER OF INCOMETAX NAGPUR
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(1.)In my view the Deputy Registrar is right in holding that the petition is not filed within the period of limitation prescribed by rules of this Court. Under O.13 R.4 every petition for special leave is required to be accompanied by a certified copy of the judgment or order appealed from. In the present case the petition for special leave was not accompanied by a certified copy of the Judgment appealed from, Prima facie the filing would in such a case be defective. Mr. Dadachanji on behalf of the petitioner, however, contends that the period of limitation for lodging a petition for special leave is prescribed by R.1 of O.13 and if a petition is lodged in Court not accompanied by the requisite documents the period of limitation would cease running. Rule I of O.13 provides so far as it is material, that a petition for special leave shall be lodged in Court within sixty days from the date of the refusal of a certificate by the High Court or within 90 days from the date of the judgment sought to be appealed from whichever is longer. That rule has, in my judgment nothing to do with the proper lodgment of a petition for special leave to appeal. It only prescribes the period of limitation for filing a petition for special leave; whether the petition is properly filed must be determined by O.13 R.4. It is also urged that R.4 of O.13 provides that with the petition shall be filed not only a certified copy of the judgment or order appealed from but also an affidavit in support thereof prescribed by R.4 of O.17 and that the petitioner shall lodge at least seven copies of the petition and the accompanying papers and that the Registrar's Office has consistently treated failure to file affidavit and other documents required to be filed as not affecting the proper lodgment of the petition for special leave to appeal and subsequent filing of these documents has been accepted without reference to the period of limitation. I am not concerned in this matter to deal with the question whether the practice followed by the office in this behalf is correct. O.7 R.6 which deals with the procedure which the Registrar may follow for the acceptance of documents provided that the Registrar may decline to accept any document which does not conform to the Rules of the Court or is otherwise defective, or which is presented otherwise than in accordance with the Rules of the Court. If any document is declined to be accepted by the Registrar normally it would follow that the document is not presented in Court. Whether by reason of refusal to accept the document the period of limitation would be affected for filing such a document where the Rules provide for a period of limitation for such filing is a matter with which R.6 of O.7 is not concerned. Nor has O.3 R.8 sub-r.7 which invests the Registrar with power to allow from time to time any period or periods not exceeding four weeks in the aggregate to comply with the requisitions or doing any other act necessary to make the plaint, appeal, the petition or other proceedings complete, anything to do with the period of lodgment of a petition for special leave to appeal under R.1 of O.13. O.3 R.8 only deals with the power of the Registrar and does not seek to dispense with the filing of documents which are required to be filed under R.4 of O.13. In my view the petition not having been accompanied by a certified copy of the judgment was not filed within the period of limitation and the petition should be treated as properly filed only when the certified copy of the judgment was filed.
Supreme Court of India - Press Note
An important question regarding the practice and procedure to be followed relating to the filing of the Special Leave Petition came up for consideration before Mr. Justice J. C. Shah sitting in Chambers. His Lordship after considering the relevant provisions, namely, R.4 of O.13, Supreme Court Rules, has held that a copy of the Order or Judgment appealed from must accompany the petition for Special Leave as prescribed by R.4 of O.17, Supreme Court Rules, and is a condition of the lodgment of the Petition. His Lordship has also administratively directed that wherever a Petition for Special Leave is not accompanied by an affidavit, the filing thereof in that case is defective, and for purposes of calculating the period of limitation prescribed for filing the Special Leave Petitions such a Petition shall be deemed to have been filed on the date when an affidavit in support thereof as prescribed by R.4 of O.17, Supreme Court Rules, is filed.
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