Sudhamay Basu, J. - (1.) This application is for condoning the delay in filing an appeal against the order of K. J. Sengupta, J. dated the 15th of May, 1972 discharging a Rule in which the petitioners challenged the constitutionality of the Letters Patent of 1865, Calcutta High Court (Jurisdictional Limits) Act of 1919 and Section 34 (2) and (3) of the Advocates Act, 1961. The applicants have made this application both under Section 5 and Section 14 of the Limitation Act. Of the numerous respondents, nine in number, only respondent No. 4, the Secretary of the Bar Library Club has filed an affidavit-in-opposition to which the petitioners in turn have filed an affidavit in reply.
(2.) The relevant facts as would appear from the connected papers are as follows:--The Rule was discharged by K. J. Sengupta, J. on the 151h of May. 1972. On the 25th of July, 1972 an application was filed for a certificate for leave to appeal to the Supreme Court under Article 132 (1) of the Constitution of India. But the same was rejected on the 23rd of August, 1972 on the ground that in a case where appeal lies to the High Court the Court should be very slow in granting certificate for an appeal to the Supreme Court directly. Thereafter, the petitioners made an application for special leave under Article 132 (2). On 16-10-1972 the matter came up for hearing before the Supreme Court in S. L. P. (Civil) No. 2881 of 1972 (SC) when it appears "upon hearing the Counsel for the petitioners the Court-dis- missed the application as withdrawn." A certified copy of the order has been filed ire this Court. It is, however, pleaded in paragraph 5 of the petition that the Bench of the Supreme Coon constituted by K. S. Hegde, P. Jaganmohan Reddy and H. R. Khanna, JJ. advised the Counsel on behalf of the petitioners to withdraw the application, to prefer an appeal before this Court and to have the same heard by a Special Bench to be constituted by the Chief Justice without prejudice to the rights and contention as to the points taken regarding the constitutionality of the Letters Patent. The petitioners state that they have been prosecuting with due diligence another civil proceeding in the Supreme Court relating to the same matter in issue and the same was being prosecuted with good faith and this appeal could not be filed earlier until the Supreme Court indicated "its views" on the point on 17th January, 1973. Immediately thereafter, it is submitted in the petition, that the counsel for the petitioners "rushed to this Court and with utmost diligence amidst uncertainty and cancellation of trains in the wake of power strike in Uttar Pradesh reached Calcutta on the 22nd January, 1973 and filed this application on the next working day". A further application was made on behalf of the petitioners under Order 1, Rule 16 of the Code of Civil Procedure to strike out some statements made in para. 6 of the affidavit-in-opposition filed on behalf of the Bar Library Club. But Mr. John did not make any submission with regard to the same.
(3.) Mr. K. J. John, the learned Advocate appearing in support of the application submitted that he was entitled to the benefits of both Section 5 and Section 14 of the Limitation Act. He stated that the petitioners were entitled to the exclusion of the time during which they were proceeding bona fide in the Supreme Court. In this connection Mr. John referred to three cases decided by the Supreme Court, namely, R.D. Agarwalla v. Union of India, Union of India v. Jyoti Prakash Mitter, & Union of India v. Sudhangsu Mazumdar, commonly known as Berubari Case. In all these cases the Supreme Court held that the practice of deciding a case sitting singly and giving a certificate under Article 132 (1) for appeal to Supreme Court although technically correct is an improper practice. It is the right of the party to file an appeal in the High Court itself against the decision of the single Judge and that right should not be short-circuited by passing on the case to the Supreme Court for decision. The learned Advocate made it clear that as the main question involved in the present appeal itself related to the validity of the Letters Patent he thought it advisable not to prefer an appeal in this Court on the basis of the Letters Patent itself inasmuch as the same would prejudice the right of his client. According to him the appeal under the Letters Patent before this Court would be hit by the doctrine of estoppel and waiver. The learned Advocate pleaded for excluding the time during which he proceeded before the Supreme Court. After the order made by the Supreme Court on the 17th of January, 1973 he proceeded with utmost diligence and there was no negligence on his part. Mr. John further submitted that in any event, on the facts and circumstances of the case, the delay in filing the petition may be condoned under Section 5 of the Limitation Act as there was "sufficient cause" for not preferring the appeal within the requisite period. Mr. John also pleaded that inasmuch as the Supreme Court had expressed "the views" that his client should prefer an appeal here and have the same heard by a Special Bench there could be no prejudice to the rights of his clients. The expression of the "views" of the Supreme Court was binding. The word "advice" used in the petition may not have been apposite but the same should not, in any way, stand in the way of the interest of his clients.;