RABINDRA NATH CHAKRAVARTY Vs. UNION OF INDIA & ORS.
HIGH COURT OF CALCUTTA
RABINDRA NATH CHAKRAVARTY
Union of India And Ors.
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Bankim Chandra Ray, J. -
(1.)This appeal is against the judgment passed on an application under Art. 226 of the Constitution of India. The judgment was delivered on Aug. 1, 1974. The application for the certified copy of the judgment was made on Sept. 30, 1974 and the copy was ready for delivery on March 15, 1975 which was Saturday and the appeal was presented to this Court on March 17, 1975. The Stamp Reporter made a note to the effect that the appeal was filed out of time by 198 days. Mr. A.K. Sarkar, learned Advocate submitted before the Stamp Reporter that the appeal was not barred by limitation and in support of his submission he cited certain decisions of this Court as well as of the Supreme Court.
(2.)Art. 117 of the Limitation Act 1963 provides that an appeal from a decree or order of any High Court to the same Court is to be filed within 30 days from the date of the decree or order appealed from. The question is whether this provision of the Limitation Act will apply to determine the period of limitation for filing the appeal against an order passed by this Court in exercise of its original jurisdiction on an application under Art. 226 of the Constitution. In AIR 1962 Supreme Court 247, Union of India and another Vs. Ram Kunwar & others, an appeal was preferred against the decision passed on an application under Art. 226 of the Constitution for a writ of Mandamus in the High Court of Punjab. After hearing the said application a writ of Mandamus was issued directing the opposite parties respondents to put the petitioner in possession of a flat in question. Against the said order an appeal was filed within 30 days. The Division Bench of the said High Court held that the appeal was barred by limitation inasmuch as the time for filing an appeal was 20 days as prescribed by Art. 151 of Indian Limitation Act, 1908. It was held by the Supreme Court that an appeal against the order passed by High Court in exercise of its original jurisdiction was an appeal under Clause 10 of the Letters Patent of the High & Court of Punjab and as such Rule 4 of Chapter I of the Punjab High Court Rules and Orders framed by High Court under Clause 27 of Letters Patent would apply to determining the period of Limitation for such appeal and not Art. 151 of the Limitation Act, 1908. Rule 4 of the said Rules prescribes for filing an appeal under Clause 10 of the Letters Patent within 30 days from the date of the judgment and order. As such it was held that the appeal was not barred by limitation as the same was filed within the said period. Under Clause 37 of Letters Patent of the High Court at Calcutta this Court has been empowered to make Rules and Orders for the purposes of regulating all proceedings in civil cases which may be brought before this Court, Accordingly, rules have been framed by this Court in respect of appeals under Clause 15 of the Letters Patent. Rule 2 of Chapter VIII of the Appellate Side Rules prescribes a period of 60 days from the date of the Judgment and order for filing an appeal to this Court under Clause 15 of the Letters Patent. Sec. 29 (2) of the Limitation Act says that if any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed in the Schedule the provisions of Sec. 3 of the Limitation Act shall apply as if such period were the period prescribed by the Schedule of the Limitation Act for the purpose of determining the period of limitation of such suit, appeal or application. It has also been provided therein that the provisions of sections 4 to 24 of Limitation Act shall apply unless they are expressly excluded by such special or local law.
(3.)Thus according to section 29(2) of the Limitation Act 1963 where the special law prescribes any period of limitation for any appeal the same shall apply to the exclusion of the period of limitation as prescribed by the Limitation Act. In this case Rule 2, Chapter VIII of the Appellate Side Rules of this Court prescribes a period of limitation for filling of Letters Patent Appeals and the same will apply and Art. 117 of the Limitation Act will have no application to the instant Appeal. The period of limitation for Letters Patent Appeal against an order passed on an application under Art. 226 of the Constitution by this Court in exercise of its original jurisdiction is 60 days. The application for the certified copy of the judgment was filed on the last day of limitation, that is, on 30.9.74 and the said copy was made ready for delivery on March 15. 1975, that is, on Saturday. Now the next question that arises for decision is whether this appeal should be treated as filed within time. The provisions of sections 4 to 24 of the Limitation Act have not been excluded by Rule 2, Chapter VIII of the Appellate Side Rules and as such the said provisions will apply. Reference in this connection be made to the decision reported in 1976 (1) SCC 392, Mangruram Vs. Municipal Corporation, Delhi , where it has been observed that section 5 of the Limitation Act will apply to any application for special leave to appeal against an order of acquittal as the same has not been excluded from by the special law under section 12 of the Limitation Act the time requisite for obtaining a copy of the decree or order appealed from shall be excluded. In this case the copy was ready for delivery on 15.3.75 as the Court was closed on Sunday the appeal was filed on Monday, i.e. 17.3.75. Mention may be made in this connection to the decision reported in Hari Sankar Tripathi Vs. Shiv Haresh, 1976 (1) SCC 897 where it has been held that if the period of limitation for an appeal expires on a day when the court was closed the same could be filed on the day when the court re-opened. This appeal therefore has not been filed out of time and also it is not barred by limitation. Mukherjee, J. : I agree.
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