- (1.) This is an application for condonation of delay, under Section 5 of the Limitation Act, in preferring an appeal. It appears that the order impugned in the appeal had been passed on 17th February, 1988 and the appeal was filed on 16th April, 1998, but without certified copy of the said order. It appears further that certified copy had been applied for on the 19th February, 1998 and it became ready for delivery, upon, compliance by the applicants with all the formalities, on 20th April, 1998. The delivery of the certified copy was taken on 21st April, 1998 and the same was filed actually in Court on 5th May, 1998. The aforesaid facts are tenable on record and are incontrovertible.
(2.) The point for consideration in connection with the application for condonation of delay is 25 to whether, in view of the decisions of Division Benches of this Court in the case of State of West Bengal v. Biswanath Ghosh, reported in (1992(1) Cal LJ 466 and in the case of University of Calcutta & Ors. v. Ramprosad Ghosh and Ors. reported in (1997)1 Cal. LJ 75 the present appeal can be entertained. The decisions of the said two Division Benches appear to be m conflict with each other but such conflict does not create any problem for us to dispose of the application in the present, case for condonation of delay as in none of the aforesaid cases a certified copy had been filed. Even assuming that the first decision mentioned above permitted the Court to entertain an appeal beyond the period of 30 days only when the same is filed with a certified copy of the order impugned, that does not lay down a proposition that even if an appeal beyond 30 days is filed with certified copy, the Court has no jurisdiction to take up the same for consideration subject to the question of limitation. It is also incontrovertible in law that, in considering the effect of limitation when an appeal is filed with a certified copy of the order impugned, the appellant has a right to bank upon the period requisite for obtaining such certified copy for getting an extension of the ordinary period of limitation. In this particular case the period of limitation of 30 days when added with the time requisite for obtaining a certified copy, treating that the appeal was filed on 5.5.98-date of filing certified copy, renders the appeal to have been filed within time and as such, question of condonation of delay, which does not exist, is not required to be considered. We hold the appeal to have been filed within the period of limitation and that there is no requirement for asking for condonation of delay in preferring the instant appeal in view of the special facts on record of this case.
(3.) The second judgment, before we part with the case we think it is our duty to keep on record, cannot be held to lay down absence of power and authority of Court to deal with an appeal filed with a certified copy beyond the period of 30 days and for the present case, it is not necessary for us to go into the question as to whether in case of filing of a Mandamus Appeal, there is no necessity at all to file certified copy of the impugned order.;