PYAREYLAL GUPTA Vs. H H MAHARAJA SHRI KAMI SINGHJI
HIGH COURT OF RAJASTHAN
H H MAHARAJA SHRI KAMI SINGHJI
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Ranawat, J. -
(1.)THIS is an application by Pyarelal for condonation of delay. The facts leading to this petition are as follows. Leave to appeal to the Supreme Court was granted by the Court on the 25th of July 1960. The petitioner was to make an application for preparation of lists under rule 394 of the High Court Rules within ten days of the date of grant of certificate. He failed to make an application within ten days as required by rule 394. He deposited the amount of security on the 30th of August 1960 and he made an application for admission of the appeal which came up before us yesterday. As the amount for preparation of the paper-book had not been deposited, the appeal could not be declared admitted and further time was allowed to the petitioner to comply with the provisions of rule 7 Order 45 of the Civil Procedure Code. He made this application for condonation of delay on the ground that the petitioner remained away in connection with consultation with his lawyer at Delhi and he could not, therefore, make an application as required by rule 394 within the prescribed period of ten days. Notice was given to the opposite party and Mr. Vyas has opposed the application for condonation of delay on the ground that the limitation prescribed by rule 394 having expired, the petitioner has no case for condonation of the delay. Mr. Vyas has further taken up his stand that as there is no provision in the rules for extension of time or condonation of delay, the petitioner has no remedy whatsoever and this Court should cancel the certificate under Order XII rule 3 of the Supreme Court Rules.
(2.)RULE 394 (1) provides that when a certificate has been granted, the petitioner shall within ten days from the date of the grant of such certificate apply to the Registrar for the preparation of a list of papers to be included in the Record and a list of all other papers, and the making of an estimate of the cost of preparing the Record and transmitting it to the Supreme Court. The contention of Mr. Vyas is that rule 394 has the force of law, as the High Court RULEs have been framed under sec. 46 of the High Court Ordinance and as there is no provision for extension of time or condonation of delay, it is not competent for this Court to consider the application of the petitioner in this behalf. We have carefully examined the contention of the learned counsel. RULE 394 is a statutory provision. There is also no provision in the High Court RULEs as to what will happen if the period prescribed by RULE 394 is not adhered to. In the Indian Limitation Act, sec. 3 bars all applications, appeals or suits that are instituted after the expiry of the period of limitation prescribed by that Act. No corresponding provision to sec. 3 of the Limitation Act appears in the High Court RULEs. The purpose of rule 394 is to expedite the preparation of the paper-book for transmission to the Supreme Court and to ensure due compliance of the provisions of rules 7 and 8 of Order 45 of the Civil Procedure Code. The provision of rule 394 prescribing the time of ten days thus appears to be of directory and not mandatory nature. We are reinforced in our view by the decision of the Privy Council in Burjore and Bhawani Pershad vs. Bhagana (1) in which their Lordships held that the provisions relating to the time within which security in cases of appeal to the Privy Council was to be given were directory in nature. Moreover, in cases where for some good reason an application is not presented within the prescribed period of ten days and compliance of Order 45 rules 7 and 8 is still possible, this Court has ample discretion under Order 12 rule 3 of the Supreme Court RULEs to extend time and may do so in proper cases.
We may here refer to the provision of rule 3 of Order XII of the Supreme Court Rules. The said rule is as follows : - "3. Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court may, on its own motion or on application in that behalf made by the respondent, cancel the certificate and may give such directions as to the costs of the appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case required. " By rule 3 Order XII of the Supreme Court Rules, power is vested in the High Court to make such further or other order as the justice of the court requires. Where for some reason not within the control of the petitioner, an application has not been presented within ten days under rule 394, it may be in the interest of justice to permit the petitioner to pursue his appeal without prejudice to him on account of such default. The High Court of Allahabad in Lal Dharam Mirat Singh vs. Kaur Man Singh (2) has put a restricted meaning on the provision of rule 3 Order XII of the Supreme Court Rules and has tried to read the words "or to make such further or other order as the justice of the case requires" in continuation of the words "give such directions as to the costs of the appeal and the security entered into by the appellant as it shall deem fit" and has, therefore, come to the conclusion that the scope of rule 3 is not wide enough to cover such cases. We are not in agreement with the opinion expressed by the Allahabad High Court on this point and, in our opinion, the scope of rule 3 is wide enough to empower this Court to pass an order of refusal to cancel the certificate. The clause "or to make such further or other order as the justice of the case requires" is not governed by the verb "may give such direction" but is independent of it. The power of the High Court to make such further or other order as the justice of the case requires, is coordinate to. the power to cancel the certificate. Rule 3 of Order XII of the Supreme Court Rules even overrides the provisions of the Civil Procedure Code by virtue of sec. 112 of the Code. In the present case, we are only concerned with the question of contravention of the High Court Rules and not of the provisions of the Code. We may refer with approval the decision of the Orissa High Court in Pitambari Dibya vs. Chandrasekhar Prabaraj (3) in which it has been held that the provision of rule 5 Order XII overrides the provision of the Civil Procedure Code and the High Court has power to grant extension of time for cogent reasons. We may also refer to an order of this Court dated the 30th of April 1959 in Thakur Sangramsingh vs. The State of Rajasthan (D. B. Civil Miscellaneous Petition for leave to Appeal to the Supreme Court of India No. 15 of 1957 (B)) wherein extension of time was granted by this Court under rule 3 Order XII for depositing the amount of expenses for the paper-book and security. We may also refer to the case of Mst. Gulab Bai vs. Mst. Manphool Bai (4) cited by learned counsel for the opposite side. In that case, certificate for leave to appeal to the Supreme Court was granted, but the appellant failed to make an application under rule 394 of the High Court Rules for more than six months and the opposite party made an application for cancellation of the certificate for want of diligently prosecuting the proceedings for preparation of the record. Wanchoo C. J. dismissed the application and allowed the appellant to prosecute the proceedings for the reason that the appellant was in that case under a misconception about the provision of the rules and these matters were then new so far as this Court was concerned. However, this Court granted extension of time in that case and the decision in that case may, therefore, be considered to be an authority on the point that it is competent for this Court to extend time in proper cases.
The petitioner remained busy consulting senior lawyers at Delhi and he could not, therefore, file an application within the prescribed period of ten days for preparation of the lists of the papers to be included in the paper-book. As the period prescribed by the Code has not yet expired, the petitioner should be allowed to prosecute the appeal and the delay occasioned on his behalf, is, in the interest of justice, condoned. Let the office proceed further in the matter. .
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