Decided on January 08,1960

BAL CHAND Appellant


- (1.)THIS is an application filed by the appellant for extension of time under Sec. 5 of the Indian Limitation Act.
(2.)MR. Bhandari, counsel for the appellant in the first place contends that the appeal is within time, because, according to him, it is not governed by R. 134 of the Rajasthan High Court ` Rules, 1952. He contends that it is not a special appeal as contemplated by the Rules; but the appeal is governed by Art 156 of the Indian Limitation Act. In the alternative, he submits that if the Corut holds that the case is governed by R. 134 of the Rajasthan High Court ` Rules, time may be extended on the ground that there is already a previous decision given by this Court in a similar case, where Art. 156 of the Limitation Act was applied.
Our attention has been drawn to an order dated 15th October, 1959 which was passed by a Division Bench of this Court in Civil Special Appeal No. 21/1959 Motilal vs. Mangilal, where Ranawat and Bhandari, JJ. held that the appeal was not time-barred on the face of it, because of Art 156 of the Limitation Act. The order was an exparte order and unfortunately, it does not appear that either in the office note or in the order in question, there is any reference to R. 134 of the High Court Rules, by which such appeals are governed. R. 134 of the High Court Rules provides a period of 60 days for presentation of memorandum of appeal against the decision of a Single Judge of this Court. It says that a person desiring to prefer a Special Appeal from the judgment of Single Judge shall present a duly stamped memorandum of appeal within sixty days from the date of such judgment and where such appeal is presented after the period mentioned above, it shall be accompanied by an application supported by an affidavit explaining the cause of delay. Now, "special appeal" has been defined under R. 3 of the High Court Rules. It means an appeal from the decision of one Judge.

Under Sec. 18 of the Rajasthan High Court ` Ordinance, 1948 (Ordinance No. IV of 1949) under which this appeal has been preferred, provision has been made for preferring appeal against the judgment of a Single Judge. Therefore, in our opinion, in all such cases, it is R. 134 of the High Court Rules, which will be applicable and consequently, the period of limitation provided thereunder, viz. that the memorandum of appeal should be presented within 60 days, is the appropriate period, which will govern such cases. We do not think that there is any substance in the contention of the learned counsel for the appellant that R. 134 of the High Court Rules is ultra vires the provisions of the Rajasthan High Court ` Ordinance, 1949. Under sec. 46 of the Ordinance, the Court is entitled to make rules to regulate its practice which will include in other words, the presentation of appeals of this nature. It was, therefore, fully competent for the Court to enact R. 134 providing a period of limitation for presentation of such special appeals. Art. 156 of the Limitation Act applies to those cases where appeals are preferred to the High Court from the decisions of the sub-ordi-nate courts and not where an appeal is preferred from a decision of a Judge of this Court to another Bench of this Court as provided by the High Court Ordinance, 1949. We, however, feel constrained to extend time, because of the order in question on which the learned counsel for the appellant is entitled to rely in justification of the delay in the presentation of the memorandum of appeal as this would amount to sufficient cause within the meaning of sec. 5 of the Limitation Act.

We accordingly admit the appeal and condone the delay. The appeal should have been filed under R. 134 of the High Court Rules on the 10th Oct. , 1959, but it was actually filed on the 14th Oct. '59. In the circumstances, the delay is condoned and the appeal is ordered to be admitted. .


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