- (1.) THE appellant filed Civil Writ Petition No. 1146 of 1966, in this Court against the order of the Financial Commissioner, which was dismissed by a learned Single Judge on November 27, 1970. Against that judgment the appellant filed, an appeal under Clause 10 of the Letters Patent on December 23, 1970. The Deputy Registrar raised certain objections, including that it was not accompanied by three sell of typed copies of documents as required by Rule 3 of Chapter 2-C of the High Court Rules and Orders, Vol. V, and ordered its return to the learned counsel for the appellant for removing the defects and to refile it within a week. The order for return was passed on December 23, 1970, but it has not been possible to ascertain as to on which date the learned counsel or his clerk took it back from the Court. However, after removing the defects pointed out by the Deputy Registrar, the appeal was refiled on January 30, 1971. No objection was then taken by the Deputy Registrar to its having been refiled after more than a week allowed by him : On February 24, 1971, the appeal was admitted by the Motion Bench without adverting to the question of limitation. On April 19, 1972, when the appeal came up for hearing before the Division Bench, the learned counsel for Dayal Singh, Harbhajan Singh and Harbans Singh, the contesting respondents, raised the objection that it was barred by time. Thereupon, the appellant moved an application under Section 5 of the Limitation Act for condonation of delay, if there was any, in presenting the appeal. The said application was resisted by Dayal Singh, Harbhajan Singh and Harbans Singh (hereinafter called the respondents ). It was contended by the learned counsel for the appellant that the appeal, when initially presented on December 23, 1970, was within time and even otherwise, if there was any delay in its presentation when it was refiled the Motion Bench, while admitting the appeal, would be deemed to have condoned the same. On the other hand, the learned counsel for the respondents argued that in the circumstances of the case, the appeal should be deemed to have been presented on January 30, 1971, and as it was then barred by time, it was only the Motion Bench which could, on good cause being shown, condone the delay. Reliance in that respect was placed by him on Rule 4 of Chapter 1-A (a) of the High Court Rules and Orders, Vol. V, and certain judgments of this Court as well as the High Courts of Delhi and Lahore. The Division Bench, while hearing the appeal on September 1, 1972, felt that several questions of law of great public importance and of daily occurrence were involved, which required determination by a larger Bench, particularly because there was difference of opinion amongst the learned Judges as disclosed by the judgments cited at the Bar. Consequently, the Division Bench formulated the following seven questions to be referred to a Full Bench for decision :- (1) Whether the power to condone delay or extend time for filing an appeal under Clause 10 of the Letters Patent of this Court is confined to the Bench admitting the appeal and Rule 4 of Chap. 1-A (a) of the Rules and orders of this Court, Vol. V, takes away the jurisdiction of the Bench hearing the appeal or any Bench other than the Motion Bench to extend the time? In other words whether the law laid down by the Division Bench of this Court in Janardhan Misra's case is correct or the view expressed by the Division Bench of the Delhi High Court in the case of Matu Ram and others, and by the earlier Division Bench of this Court in Harbans Singh's case is sound? (2) Whether the delay in preferring the appeal is deemed to have been impliedly condoned by the Motion Bench by admitting it to a hearing after the expiry of the period of limitation? (3) Can an appeal be dismissed after admission on a ground on which it was liable to be rejected under Order XLI, Rule 3 of the Code of Civil Procedure? (4) Whethcr a memorandum of appeal can be rejected on a ground not specified in Order XLI, Rule 3 of the Code of Civil Procedure but because of non-compliance with any rule of procedure framed by this Court? (5) Can a Letters Patent Appeal, which has not been rejected under Order XLI, Rule 3 of the Code, be dismissed as barred by time on the ground that though it was originally filed within time, it has been refiled along with spare paper-books beyond time? (6) What is the effect of the Registry entertaining an appeal which is refiled after the expiry of the period of limitation beyond the time allowed in the endorsement of return, but within forty days of the order of return if the appeal when originally filed was within time? (7) Can an appeal under Clause 10 of the Letters Patent be held to be incomplete or "no appeal in the eye of law" merely because it is not accompanied by the requisite three spare copies of the paper-book? This Full Bench has, accordingly, been constituted to decide these matters.
(2.) IN order to appreciate the contentions advanced by the learned counsel for the parties and for recording answers to the aforesaid questions, it would be appropriate to reproduce the relevant provisions of law cited at the Bar, i. e. , the Rules and Orders of this Court. Volume V (hereinafter referred to as the Rules), relevant clauses of the Letters Patent and the relevant provisions of the Indian limitation Act. No. 9 of 1908 (hereinafter called Act No. 9 of 1908), as well as of the Limitation Act, No. 36 of 1963 (hereinafter referred to as Act No. 36 of 1963), which came into force on January 1, 1964. These provisions are as under:-Rule 4 of Chapter 1-A (a) of the Rules: "no memorandum of appeal preferred under Clause 10 of the Letters Patent shall be entertained if presented after the expiration of 30 days from the date of the judgment appealed from, unless the admitting Bench in its discretion, for good cause shown, grants further time for the presentation. Such memorandum of appeal need not be accompanied by a copy of the judgment appealed from, but a memorandum of appeal for which a certificate is required under Clause 10, must contain a declaration to the effect that the Judge, who passed the judgment, has certified that the case is a fit one for appeal. The time spent in obtaining the certificate from tie Judge (including the date of application and the date on which the Judge passed the order) shall be excluded in computing the period of limitation. Section 12 of the Indian Limitation Act governs an appeal under the Letters Patent and the appellant in such a case is entitled to exclude the "lime requisite" for obtaining a copy of the judgment appealed against (whether such copy is filed or not) even though under the Rules of the Court no copy of the judgment is required to be filed with the memorandum of appeal. " Rule 5 (1) The Deputy Registrar may return for amendment and refiling within a time not exceeding 10 days at a time, and 40 days in the aggregate, to be fixed by him, any memorandum of appeal for the reason specified in Order XLI, Rule 3, Civil P. C. (2) If the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under Sub-rule (1), it shall be listed for orders before the Court. " Rules 2 and 3 of Chapter 2-C of the Rules: "2. The paper-book in such appeals (i. e. under Clause 10 of the Letters Patent) shall ordinarily consist of :- (a) the memorandum of appeal, (b) a copy of the judgment appealed from; (c) copy of the judgment or other documents which were before the Judge from whose judgment the appeal is preferred. "3. No appeal under Clause 10 of the Letters Patent will be received by the Deputy Registrar unless it is accompanied by three typed copies of the following :- (a) Memorandum of appeal; (b) Judgment appealed from, and (c) Paper-book which was before the Judge from whose judgment the appeal is preferred. " LETTERS PATENT FOR THE HIGH COURT Clause 27. And we do further ordain that it shall be lawful for the High Court of Judicature at Lahore from time to time to make rules and orders regulating the practice of the Court and for the purpose of adapting as far as possible for the provisions of the Code of Civil Procedure, being an Act, No. V of 1908, passed by the Governor-General in Council, and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, in all proceedings in its testamentary, intestate and matrimonial jurisdiction, respectively. Clause 37. And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the Legislative powers of the Governor-General in Legislative Council, and also of the- Governor-General in Council under section seventy-one of the Government of India Act, 1915 and also of the Governor-General in cases of emergency under section seventy-two of that Ad, and may be in all respects amended and altered thereby. " Act No. 9 of 1908 "section 29 (2 ). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule. . . . . " THE FIRST SCHEDULE Description of appeal. Time from w Per period begins iod of lim itati on. 151 From a decree or order of any of the High Courts of Judi-cature at Fort The date of t Wil-liam, Madras and Bombay, or of the High Court of Punjab in the exercise Tw decree or ordof its original jurisdiction. ent y day s. Act No. 36 of 1963 The provision contained in Section 29 (2) of Act No. 36 of 1963 is similar to the one contained in the aforesaid Section 29 (2) of Act No. 9 of 1908. Article 117 of Act No. 36 of 1963 is as under: Description of Period of Time from which period appeal. limitationbegins to run. 117 From a, decree Thirty The date of the decree or order of any High days. or order. Court to tie aamflcourt I now proceed to discuss the various questions referred to us with a view to answer the same. Question No. 1
(3.) RELYING on Rameshwar Das v. Official Receiver, Delhi, AIR 1938 Lah 325; Harbans Singh v. Karam Chand, 51 Pun LR 50 - (AIR 1949 East Punj 299); Matu Ram v. Union of India, AIR 1967 Delhi 58 and ac unreported judgment of this Court, dated August 29, 1963. Des Raj v. The Administrator, Municipal Committee, Sonepat, L. P. A. No. 266 of 1960 (Punj), Shri H. L. Sarin, learned counsel for the respondents, argued that the Motion Bench was the only Bench which could condone the delay in filing the appeal, and that no other Bench, not even the one hearing the appeal, was competent to extend the time for presentation of the appeal. On the other hand. Shri J. N. Kaushal, learned counsel for the appellant, relying on an unreported judgment of this Court, dated January 11, 1968, in C. Ms. Nos. 4353 of 1966 and 415 of 1967 in L. P. A. No. 428 of 1966 (Punj), Janardhan Misra v. P. N. Thapar, contended that the Bench hearing the appeal had the jurisdiction to condone the delay, if there was any, in filing it. It will be presently seen that the judgments relied on by Shri Sarin arc not applicable to the case in hand and that the| present case is covered by the judgment recorded in Janardhan Misra's case, and the contention of Shri Kaushal is sound and must prevail. True, the consensus of the learned Judges, who decided the cases cited by Shri Sarin, was that the Motion Bench (referred to as admitting Bench in Rule 4) was alone competent, for good cause shown, to extend the period of 30 days prescribed by the said rule for presenting a Letters Patent Appeal. But all the aforesaid cases, relied on by Shri Sarin, relate to the period when the provisions of Act No. 9 of 1908 were in operation. Rule 4 was made in pursuance of the rule-making powers available to this Court under Clause 27 of the Letters Patent. But, then those powers were subject to the legislative power of the Legislature vide Clause 37 of the Letters Patent. Article 151 in the First Schedule of Act No. 9 of 1908 provided a period of 20 days for any appeal from a decree or order passed by the High Court in exercise of its original jurisdiction, while Rule 4, in contradistinction to the said Article 151, provided a different period, i. e. , 30 days from the date of the judgment appealed from, for an appeal under Clause 10 of the Letters Patent. The said Rule 4. having been made by this Court under powers available to it under Clause 27 of the Letters Patent, had the status of a special law. Therefore, the period of 30 days having been prescribed by special law was saved by Sub-section (2) of Section 29 of Act No. 9 of 1908, and the same prevailed against the period of 20 days prescribed by Article 151 in the First Schedule of Act No. 9 of 1908. To put it differently, during the period prior to January 1, 1964, when Act No. 9 of 1908 was in force, Article 151 gave way to Rule 4 and the period of limitation for appeal under Clause 10 of the Letters Patent was 30 days from the date of the judgment appealed from, as has been made clear by their Lordships of the Supreme Court in the Union of India v. Ram Kanwar, AIR 1962 SC 247. When Act No. 36 of 1963 came into force, i. e. , on January 1. 1964, its Article 117 replaced Article 151 of Act No. 9 of 1908. The said Article 117 provides 30 days fin place of 20 days prescribed by Article 151 of Act No. 9 of 1908) for an appeal from a decree or order of any High Court to the same Court, whether passed in the exercise of original jurisdiction or appellate jurisdiction. Section 5 of Act No. 9 of 1908 did not by itself apply to extension of time fixed under other enactments, but could be made applicable thereto. Its operation had not been extended to Rule 4. Therefore, Section 5 could not be invoked for extending the time fixed by that Rule. The appeal in hand having been presented on December 23, 1970 and refiled on January 30, 1971, is governed by Article 117. Since the period of limitation prescribed for the appeal by Rule 4 and Article 117 of Act No. 36 of 1963 is identical, the provisions of Section 29 (2) of Act No. 36 of 1963 are not attracted and, as such, there is no saving of Rule 4 and it must give way to Article 117, as far as the period of limitation is concerned. It follows that Article 117 of Act No. 36 of 1963, and not Rule 4, is now applicable to all appeals under the Letters Patent, and the provisions of Section 5 of the Limitation Act apply thereto so far as the question of condoning the delay in filing the appeal is concerned. Rule 4 granted the discretion to condon the delay for good cause shown, in filing appeal out of time to the Admitting Bench alone, but jurisdiction to condone such delay under Section 5 of the Limitation Act is now available to every Bench hearing the appeal, whether at the motion stage or at the stage of a subsequent or final hearing. Therefore, the Bench hearing the appeal is competent, in exercise of its discretion, to grant or refuse to grant extension of time on an application moved under Section 5 of the Limitation Act in an appeal filed after January 1, 1964. The observations made by Mehar Singh, C. J. , in Janardhan Misra's case fully cover the point in controversy. It is pertinent to note that in that case too, the appeal was under Clause 10 of the Letters Patent and had been filed after the expiry of 30 days, i. e. , the period of limitation prescribed for the same, from the date of the judgment appealed from, and the said appeal had been presented after the coming into force of Act No. 36 of 1963. So, the judgment given in Janardhan Misra's case is relevant to the point which is the subject of this question, and none of the judgments relied upon by Shri Sarin is now relevant, for the obvious reason that all those cases relate to the period when Act No. 9 of 1908 was in force and Rule 4 provided a different period of limitation for appeals under Clause 10 of the Letters Patent.;